Interfit Pty Limited (in liquidation) v Ivanovic - [2012] NSWWCCPD 73

WORKERS COMPENSATION COMMISSION
DETERMINATION OF APPEAL AGAINST A DECISION OF THE COMMISSION CONSTITUTED BY AN ARBITRATOR
CITATION:		Interfit Pty Limited (in liquidation) v Ivanovic [2012] NSWWCCPD 73
APPELLANT:		Interfit Pty Limited (in liquidation)
RESPONDENT:		Branko Ivanovic
INSURER:		Cambridge Integrated Services Australia Pty Ltd t/as Xchanging
FILE NUMBER:		A1-11032/11
ARBITRATOR:	Ms F Robinson
DATE OF ARBITRATOR’S DECISION:		20 August 2012
DATE OF APPEAL DECISION:		6 December 2012
SUBJECT MATTER OF DECISION:		Requirements for the acceptance of expert evidence; adequacy of reasons.
PRESIDENTIAL MEMBER:		President Judge Keating
HEARING:		On the papers
REPRESENTATION:		Appellant:	Goldbergs Lawyers
Respondent:	Martin Bell & Co
ORDERS MADE ON APPEAL:		1. The Arbitrator’s determination of 20 August 2012 is confirmed. 2. The Appellant employer is to pay the respondent worker’s costs of the appeal.

BACKGROUND

Mr Branko Ivanovic, the respondent to the appeal, was employed by the appellant, Interfit Pty Limited (Interfit), as a ceiling fixer. On 26 September 2000, he fell from a ladder and was injured.
On 14 November 2003, the parties entered into an agreement pursuant to s 66A of Workers Compensation Act 1987 Act (the 1987 Act) concerning the payment of lump sum compensation to Mr Ivanovic in respect of impairments to his back, neck, left leg and sexual organs.
On 13 July 2008, the parties entered into a further agreement pursuant to s 66A of the 1987 Act relating to additional lump sum compensation in respect of impairments to the back and left leg.
On 24 August 2011, Mr Ivanovic made a claim for further compensation in the sum of $5,200 in respect of an eight per cent impairment relating to permanent loss of bowel function. He alleged that as a result of the injuries of 26 September 2000, he had consumed “pain and inflammation management medication” which had caused gastro-oesophageal reflux, gastro-oesophageal dysmotility and irritable bowel syndrome, which had in turn led to the permanent impairment claimed. He relied on a report that a specialist gastroenterologist, Associate Professor Terry Bolin, dated 18 January 2011.
On 16 November 2011, Cambridge Integrated Services Australia Pty Ltd t/as Xchanging (Xchanging ) issued a Notice under s 74 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act). It denied liability on the basis that A/Prof Bolin’s opinion was unreliable because he had allegedly failed to indentify the quantum of medication taken and the duration over which it was taken.
On 8 December 2011, Mr Ivanovic lodged an Application to Resolve a Dispute in the Commission. He claimed lump sum compensation in accordance with the letter of demand of 24 August 2011. He also sought the resolution of a threshold dispute concerning his claim for work injury damages.
On 17 January 2012, the respondent lodged a Reply. It denied liability for the reasons referred to in the s 74 Notice.
The matter was listed for a conciliation/arbitration hearing before a Commission Arbitrator on 2 May 2012. Both parties were legally represented. No oral evidence was called.
In a reserved decision dated 2 August 2012, the Arbitrator found in favour of Mr Ivanovic. She found that he had suffered a consequential injury to his bowel and his upper and lower digestive tracts as a result of the ingestion of analgesia and other medications for the relief of symptoms arising from his accepted orthopaedic injuries.
A Certificate of Determination and a Statement of Reasons (Reasons) was issued by the Arbitrator on 20 August 2012. The determination was in the following terms:
“The Commission determines:
1.     The claim pursuant to section 66, and the threshold dispute, as limited by paragraph five in the Statement of Reasons, are remitted to the Registrar for referral to an Approved Medical Specialist in the following terms:
Date of Injury:                    26 September 2000
Section 66 Assessment:      Impairment of the bowel -Table of Disabilities
Threshold dispute:              Whole person assessment of the upper digestive tract
And lower digestive tract.
Brief: All documents in evidence and this Determination.
2.      The respondent to pay the costs of the applicant as agreed or assessed.”
Interfit has appealed the Arbitrator’s determination.

ON THE PAPERS

Section 354(6) of the 1998 Act provides:
“(6) If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act without holding any conference or formal hearing.”
Both parties have submitted that the appeal can proceed on the papers, without a formal hearing.
Having regard to Practice Directions Nos 1 and 6, the documents that are before me, and the submissions by the parties that the appeal can proceed to be determined on the basis of these documents, I am satisfied that I have sufficient information to proceed on the papers, without holding any conference or formal hearing, and that this is the appropriate course in the circumstances.

PRELIMINARY MATTERS

It is accepted that the threshold requirements as to time and the compensation claimed satisfy the requirements of ss 352(3) and 352(4) of the 1998 Act.

THE EVIDENCE

Mr Ivanovic provided several statements of evidence. In his first statement dated 28 January 2011, he said that on 26 September 2000 he was installing ceiling tiles at the Citibank building in Sydney. He had been provided with a 1.2 metre ladder which was too short in the circumstances. To complete the task he stood on top of the ladder whilst trying to fit the ceiling tiles into place. Mr Ivanovic said that the ladder “tripped from underneath me and I fell down hard on my back and leg and felt pain in my back and leg”.
Mr Ivanovic described his many attempts to obtain suitable employment between 2001 and 2011. This consisted mainly of light work for a variety of employers mainly during periods of short duration. He complained of continuing day and night pain in his lower back affecting his left hip, buttock and left leg.
With respect to the ingestion of medications, he said “I take pain killers such as Panadeine Forte when necessary. I take Glucosamine complex extra strength and fish oil which helps with my back pain and mobility. There are days when the pain is too great and no medicine helps to relieve it. It costs me about $150 per month to purchase necessary medications and pay for physiotherapy. I have been taking Buscopan and Nexium to deal with stomach problems. I suffer due to the constipation from my pain killers. My symptoms include reflux, choking, bloating, nausea, pain and constipation”.
In a further statement dated 10 February 2011, Mr Ivanovic said that since his injury he had relied on Panadeine Forte, Nurofen, Vioxx, Oxycontin and Codeine to control the pain and inflammation as a consequence of his back injury. He said that it was within two years of his injury that he began to suffer from stomach problems. These included reflux, together with a sense of heartburn and choking in the pharynx. Mr Ivanovic added that he had tried to reduce his reliance on pain management medication but had been unable to do so. He said that he had not suffered from the symptoms he described prior to the injury on 26 September 2000.
In a further statement dated 17 April 2012, Mr Ivanovic confirmed that he continued to take Panadeine Forte, Nurofen, Oxycontin and Codeine at a cost of approximately $150 per month.
Dr Srinivasan is Mr Ivanovic’s treating general practitioner. His clinical records are in evidence. For the reasons referred to by the applicant’s counsel during the course of the arbitration hearing (at T10 and T11) it would appear that Dr Srinivasan’s records are incomplete. However, the records that have been produced indicate that he prescribed Panadeine Forte for Mr Ivanovic on at least 18 occasions between 3 March 2001 and 4 May 2010.
On 8 September 2010, Mr Ivanovic was assessed by A/Prof Bolin, a gastroenterologist. He prepared a report dated 18 January 2011. A/Prof Bolin noted a history of the injury consistent with the worker’s statements. He stated that the worker was previously well. He noted that the worker complained of lumber pain and pain in his left leg which he said is a “major issue with radiation to the knee” following his work related injury.
The doctor noted that two years after the injury the worker began to develop gastro-intestinal symptoms relating to the upper intestinal tract including gastro-oesophageal reflux and heartburn with pharyngeal choking. He said “There is early satiety and epigastric pain and bloating after meals. There is no dysphagia nor odynophagia.” He added “He also experiences abdominal pain which is relieved by both [sic] or a bowel action, suggesting it is colonic in origin. His bowel habits remain essentially normal, though he has bloating. This occurs all over the abdomen and comes and goes without any particular relation to time of day or meal intake.” He also noted the worker had gained 10kg in weight.
A/Prof Bolin recorded the medication the worker had used as analgesia including Panadeine Forte, Nurofen, Voxx, Oxycontin, Codeine and some other medications that the worker could not recall. He undertook a physical examination, the results of which he recorded.
A/Prof Bolin stated that the worker’s history was consistent with his presentation. He diagnosed the worker as suffering from gastro-oesophageal reflux and gastro-oesophageal dysmotility and irritable bowel syndrome. He expressed his opinion concerning the relationship between the ingestion of medication for relief of symptoms arising from the worker’s accepted work injuries in the following terms:
“I regard the patient’s loss of bowel function and gastrointestinal complaints as assessed and diagnosed by me, is a consequence of the work injury in addition to the side effects of the medications that have been taken for pain relief.”
A/Prof Bolin assessed the worker’s whole person impairment at eight per cent relating to the impairments to the upper and lower digestive tracts.
The respondent offered no expert evidence.
A gastroscopy was performed on 26 March 2012 by Dr A Simring. He commented that there was evidence of moderate erosive oesophangitis.

THE ARBITRATOR’S REASONS

The Arbitrator did not accept the submission that A/Prof Bolin’s report could not be relied upon as he had not identified with precision the quantum of the medication ingested by the worker and therefore had not laid a proper foundation for the acceptance of his opinion.
The Arbitrator did not accept that a gastroenterology specialist would require precise details of the quantum of the medication ingested and the period of time over which it was ingested in order to form an opinion as to whether or not the ingestion of certain medication could cause an injury to the digestive tracts.
She was satisfied that, having regard to the A/Prof’s examination of the worker, his clinical evaluation within his area of expertise and his assessment of the functional status of the worker provided a sufficient foundation for the acceptance of his opinion.

ISSUES ON APPEAL

Whether the Arbitrator erred:
(a) by accepting the opinion of A/Prof Bolin expressed in his report of 18 January 2011, and
(b) by providing inadequate reasons.

SUBMISSIONS
Appellant’s Submissions

The appellant submits that the Arbitrator erred by accepting A/Prof Bolin’s opinion and/or placing any weight on it for the following reasons.
First, the documents referred to, and relied on by, A/Prof Bolin in his report of 18 January 2011, have not been identified.
Second, his report contains no information as to the quantity of the medication consumed or the duration over which the medications were consumed and/or the relationship in time between the consumption of the medication and the onset of the symptoms complained of.
Third, A/Prof Bolin’s history indicates that the worker commenced to suffer from gastrointestinal symptoms approximately two years after the injury. However, the first complaint of such symptoms recorded by Dr Srinivasan were on 11 September 2010, almost 10 years after the injury was sustained.
Fourth, A/Prof Bolin’s report failed to adequately set out the factual basis on which the doctor formed his opinion and provided no reasons for his conclusion on causation.
Expert evidence must set out the basis upon which the opinion is expressed. A mere conclusion of opinion by an expert without setting out the basis for the conclusion or opinion will carry little weight: Awad v Department of Aging, Disability & Home Care (2008) NSWWCCPD 49. Evidence based on speculation, unsubstantiated assumptions and/or unqualified opinions should not be accepted: Aroundthe Clock Transport Services Pty Limited v Flynn (2007) NSWWCCPD 204 at [32] and [33]; Claverie v State Transport Authority [2004] NSWWCCPD 39 and Garcia v Sydcom Pty Limited [2008] NSWWCCPD 4.
The appellant submits that the Arbitrator failed to address inconsistencies in the evidence, namely, the absence of any complaint of abdominal/bowel or digestive complaints in Dr Srinivasan’s notes until 11 September 2010 when the worker’s evidence is that his symptoms commenced within two years of the date of injury. An error to address inconsistencies in the evidence can constitute a failure to give proper and adequate consideration to all of the relevant evidence and can be an error of law: Symbion Health Ltd v Forward (2008) NSWWCCPD 13.
Apart from a recording of A/Prof Bolin’s opinion, the Arbitrator did not provide reasons for the acceptance of his opinion. The appellant seeks a finding that the Arbitrator’s finding of injury to the bowel, upper and lower digestive tracts, be revoked and that there be an award entered for the respondent with respect to those alleged injuries.

Mr Ivanovic’s Submissions

The appellant has not proven, by expert evidence, that in order for A/Prof Bolin’s opinion to be reliable it must be based on accurate information as to the medication taken and the duration over which the medication was taken.
It is reasonable to infer from A/Prof Bolin’s report that the worker had taken the medications referred to in the doctor’s report with reasonable consistency from the date of the accident to the date of his examination.
A/Prof Bolin relied upon the summary of Mr Ivanovic’s health prior to the accident, a description of the accident and the physical injuries suffered, his ongoing lumbar leg pain and the medications used from time to time for relief of symptoms. He also examined the worker. Whilst it is accepted that he did not identify the quantum of the drugs used he did record the type of medications used and the duration over which the medications were consumed as well as the onset of symptoms. It is submitted in those circumstances that even in the absence of an expert’s evidence to suggest that quantum is an important factor as opposed to the consistency of the ingestion of the medication, that submission would go to the weight to be given to A/Prof Bolin’s report: Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43 (Hancock).
In the event that the weight to be attached to A/Prof Bolin’s report is diminished for the reasons submitted by the appellant, in the absence of an alternative opinion expressed by an expert retained by the appellant, the Arbitrator may accept it as the best evidence available and rely on it.
In response to the appellant’s suggestion that the worker failed to seek treatment for the conditions complained of for many years after they were first experienced, he submits that it was probable that the symptomatology worsened over time because of the length of time he was ingesting the various medications.
Mr Ivanovic disputes that A/Prof Bolin’s evidence was based on speculation, unsubstantiated assumptions or unqualified opinions.
In so far as the alleged error in relation to Reasons is concerned, Mr Ivanovic submits that although the Arbitrator’s reasons were brief, they satisfy the fundamental requirement of identifying to the losing party why he or she lost: Kosovic v Star City Pty Limited [2010] NSWWCCPD 107.
In the absence of cross-examination of the worker his evidence that the symptoms commenced within two years of the date of injury is consistent with the history recorded by A/Prof Bolin and is not inconsistent with the clinical records of Dr Srinivasan who first recorded a digestive complaint in September 2010. He submitted the late record of complaint would only be inconsistent if the appellant had established that the worker at all times knew he had a treatable complaint which was caused by the ingestion of drugs and that the complaint was sufficiently severe to seek medical attention prior to when he sought it.
Mr Ivanovic relies on the statement of former Deputy President Fleming in M&S Shipman Pty Ltd v Matters [2003] NSWWCCPD 19 at [84] where she said:
“To succeed on the grounds of ‘inadequate reasons’ it will be necessary for the appellant to demonstrate not only that the reasons are inadequate but that the inadequacy sufficiently demonstrates that the Arbitrator has failed to exercise his or her statutory duty to fairly and lawfully determine the application.”

DISCUSSION AND FINDINGS

The correct approach to the appraisal of evidence by the Commission was recently considered by the Court of Appeal in Onesteel Reinforcing Pty Ltd v Sutton[2012] NSWCA 282 (Sutton). The Court’s views included those observations made by Allsop P at [2] and [3]:
“The relationship between the rules of evidence and hearings by the Commission is made clear by the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (the WIM Act), s 354. The rules of evidence do not apply. Thus, there is no prohibition on hearsay material and opinion evidence. Nevertheless, as the cases discussed by McColl JA (for example, Hancock v East Coast Timber Products Pty Ltd [2011] NSWCA 11; 80 NSWLR 43) show, the Commission is required to draw its conclusions from material that is satisfactory, in the probative sense, in order that it act lawfully and in order that conclusions reached by it are not seen to be capricious, arbitrary or without foundational material: R v Connell; Ex parte Hetton Bellbird Collieries Ltd[1944] HCA 42; 69 CLR 407 at 430; Australian Broadcasting Tribunal v Bond[1990] HCA 33; 170 CLR 321 at 359-360; Kostas v HIA Insurance Services Pty Ltd[2010] HCA 32; 241 CLR 390 at 418 [91]; Amaba Pty Ltd v Booth[2010] NSWCA 344 at [23]; Evans v Queanbeyan City Council[2011] NSWCA 230 at [109]; and the cases referred to in NADH of 2001 v Minister for Immigration and Multicultural Affairs [2004] FCAFC 328; 214 ALR 264 at [12].
Rule 15.2 of the Workers Compensation Commission Rules 2010, provides that evidence should be logical and probative, be relevant to the facts in issue and the issues in dispute, not be based on speculation or unsubstantiated assumptions, nor should it be in the form of unqualified opinions. The relationship between these requirements and lawful discharge of power at general law based on relevant material need not be explored. It suffices to say that Rule 15.2 represents a sound approach for the reliable disposition of important cases for individuals. It is not a reintroduction of the rules of evidence. Were the rule to be such a reintroduction, it would confront the inconsistency of the statute (in s 354). Thus, when one is considering the probative value of an expert report, for instance, the question is not whether it is admissible, but whether it provides material upon which the Commission was entitled to act.”

The appellant submits that the Arbitrator erred by placing any weight on A/Prof Bolin’s report of 18 January 2011, because he failed to establish a proper foundation for the acceptance of his opinion. This, it is submitted, is because he did not identify, in sufficient terms, the quantum of the medication ingested by Mr Ivanovic and the period of time over which it was ingested.
In Hancock, which is one of the cases referred to by Allsop P in Sutton, her Honour Justice Beazley, discussing the requirements for the acceptance of expert opinion in proceedings in the Workers Compensation Commission, said at [85]:
“Rather, what was required for satisfactory compliance with the principles governing expert evidence was for his reports to set out the facts observed, the assumed facts including those garnered from other sources such as the history provided by the appellant, and information from x-rays and other tests.”
Her Honour added at [88]:
“As explained above, the principle in Makita do not require that there be an exact correspondence between the assumed facts upon which an expert opinion is based and the facts proved in the case… The extent of correspondence between the assumed facts and the facts proved was relevant to the assessment of the weight to be given to the reports.”
Applying these principles, the question is did A/Prof Bolin’s report satisfactorily comply with the requirements for the acceptance of his expert opinion? His opinion was based on his understanding on the injuries suffered by the worker, the worker’s complaints of gastro-intestinal symptoms extending over an extended period, a review of the medications taken by Mr Ivanovic, and his examination and clinical evaluation. A/Prof Bolin’s opinion was consistent with the evidence of injury, the consumption of analgesic medication because of that injury. There was no challenge to A/ Prof Bolin’s expertise. His unchallenged history provided a fair climate for the acceptance of his opinion (Paric v John Holland Constructions Pty Ltd[1985] HCA 58; 59 ALJR 844; [1984] 2 NSWLR 505 at 509-510 (Paric)) and it was open to the Arbitrator to accept it. That was especially so in circumstances where the appellant tendered no competing medical opinion.
The appellant also submits that the Arbitrator erred by giving weight to A/Prof Bolin’s opinion in the absence of reasons for his conclusion on the causation issue. For the reasons given above, this submission also fails. It is clear that A/Prof Bolin’s opinion was based on the history he recorded, his findings on examination and his expertise as a gastroenterologist. I would add that not every opinion in an expert’s report must be explained chapter and verse against the mere possibility that it may be challenged. Some propositions may be so fundamental in a particular discipline as to be treated as virtually axiomatic: Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd [2002] FCAFC 157 at [87] and [89].
The appellant further submits that the Arbitrator erred by accepting A/Prof Bolin’s opinion in the absence of the doctor identifying the documents referred to in his report of 18 January 2011 which he said had been reviewed by him. There was no challenge in the proceedings before the Arbitrator as to the acceptance of the doctor’s opinion on this basis. Consequently the issue was not ventilated before or determined by the Arbitrator. It is trite law that parties are normally bound by the conduct of their case at first instance (University of Wollongong v Metwally (No 2) [1985] HCA 28; (1985) 60 ALR 68, at 71).
However, a point may be raised for the first time on appeal where the point could not possibly have been met by evidence led at the trial below (Suttor v Gundowda Pty Ltd[1950] HCA 35; 81 CLR 418 at 438; Coulton v Holcombe[1986] HCA 33; 162 CLR 1, at 6–7), or where it is in the interests of justice and would not cause prejudice to the respondent (Water Board v Moustakas[1988] HCA 12; 180 CLR 491 at 498). Neither is the case in this matter.
Had the issue been raised before the Arbitrator the issue might well have been met by evidence, by a call on the worker’s solicitors file, a direction to produce the doctor’s file or a simple request to the worker’s solicitor to provide a copy of his qualifying letter to A/Prof Bolin. No submissions have been advanced as to why it is in the interests of justice to allow the point being raised for the first time on appeal, nor do I believe it is in the interests of justice to do so.
The submission that the Arbitrator failed to address inconsistencies in the evidence is also without merit. The worker’s complaint that his gastro-intestinal condition first manifested itself within two years of the accident was unchallenged. His evidence is consistent with Dr Srinivasan’s notes and with the history he provided to A/Prof Bolin. The history is also consistent with the medical records which reveal that Mr Ivanovic was being prescribed analgesic medication between 2001 and 2010 on numerous occasions. There was no challenge to the worker’s evidence that, prior to the ingestion of the analgesic medication, he had not suffered from any gastro-intestinal complaints nor is there any evidence that those complaints were due to anything other than the ingestion of analgesia.
Although the worker suffered with gastro-intestinal symptoms for a long period before seeking treatment for the condition, there was no challenge to his evidence that he tried to manage the condition himself by reducing his dependence on analgesic medication, before finally seeking treatment for the condition.
In so far as to is alleged the Arbitrator failed to give proper reasons, s 294(2) of the 1998 Act requires that a brief statement is required to be attached to the Certificate of Determination setting out the Commission’s reasons for the determination. Rule 15.6 of the Workers Compensation Commission Rules 2011 sets out the requirements for the extent of the reasons to be provided. Although the Arbitrator’s Reasons are brief, her conclusion was based on:
(a)     the worker’s uncontested evidence as to the extent of his ingestion of analgesic medication and the period of time over which he took it;
(b)     the acceptance of A/Prof Bolin’s opinion concerning the causal relationship between the ingestion of analgesic medication and his gastro-intestinal complaints, and
(c)     the absence of any evidence to contradict A/Prof Bolin’s expert opinion.
The Arbitrator also gave reasons for rejecting the submission that the evidence of A/Prof Bolin was unreliable. Those reasons were, in the context of the evidence called, adequate.
In my view, the Reasons given by the Arbitrator were sufficient to comply with the statutory requirements. Accordingly, this ground of appeal also fails.

DECISION

The Arbitrator’s determination of 20 August 2012 is confirmed.

COSTS

The Appellant employer is to pay the respondent worker’s costs of the appeal.

Judge Keating

President
6 December 2012

I, MARGOT UNDERCLIFFE, CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF JUDGE KEATING, PRESIDENT OF THE WORKERS COMPENSATION COMMISSION.

ASSOCIATE